News & Insights

Court Dismisses Case Seeking Epa Review Of Emissions Risks

The U.S. District Court for the Northern District of California has dismissed a Clean Air Act (CAA) complaint asserting EPA must reassess risks of hazardous pollution sources whenever it requires technological upgrades for them.  Citizens for Pennsylvania’s Future et al. v. Wheeler, No. 19-cv-2004, 2020 WL 3481425 (N.D. Cal. June 26, 2020).  In a matter of first impression, the Court rejected the environmental groups’ argument that the CAA, 42 U.S.C.A. § 7412(d)(2) requires the agency to reassess hazardous air pollution risks within eight years of any revision of emissions standards.

EPA promulgated revised national emission standards for hazardous air pollutants for coke oven batteries on April 14, 2005, and coke ovens in August 2005.  Environmental groups filed the complaint in April 2019 against Andrew Wheeler, administrator of EPA, for improperly regulating coke ovens – producers of known carcinogens – thus failing to protect communities throughout the country pursuant to the CAA.  The plaintiffs sought to compel Wheeler “to take actions mandated by the Clean Air Act …to protect public health and the environment from coke ovens, major industrial sources of highly toxic air pollutants.”

EPA argued that the statute’s residual risk review is a one-time obligation performed within eight years of the establishment of initial standards for a given source.  The Court agreed, granting summary judgment in favor of EPA.  The Court determined EPA is not required to revise risk-based standards when revising technology-based standards because nothing in the statute clearly establishes a mandatory duty to keep checking for risks.  Citing to Massachusetts v. EPA, 549 U.S. 497, 533 (2007), the Court noted Plaintiffs could challenge the out-of-date risk-based standards by a petition for rulemaking under the Clean Air Act, and EPA’s action on any such petition would be subject to judicial review.